Titanic land-use battle heads for Supreme Court

February 7, 2006

Effort to build shopping center on private land has major implications

By Janis Mara Inman News

A nearly 20-year battle over 50 acres of privately owned Michigan wetlands to be heard by the U.S. Supreme Court this month is shaping up as a showdown between property rights proponents and environmentalists.

In one corner: Heavyweights like the National Association of Home Builders and the American Petroleum Institute. In the other corner: Environmental activists and governmental agencies who say the case is critical to preserving American wetlands.

Thirty-nine "friend of the court" briefs have been filed on behalf of both sides; at last count, attorneys general for 33 states and the District of Columbia supported the government, with two states favoring Rapanos.

It all began in 1988 when John Rapanos decided to fill in 50 acres he owned in Michigan to build a shopping center. According to court documents, the state told Rapanos he would need permits to develop the sites – a requirement he has never fulfilled.

In April 1989, Rapanos began preparing the site for construction, court documents say, dumping sand to cover the wetlands, among other things. The Environmental Protection Agency sent him a compliance order. He ignored it. The state issued a cease-and-desist order. Rapanos ignored it.

The battle escalated to the courts, with the federal government filing civil and criminal charges against Rapanos for violation of the Clean Water Act. After a series of trial and appeals, the 70-year-old Rapanos is losing.

He has paid fines of $185,000 and has served three years' probation in the criminal trial and still faces millions of dollars in penalties and fees from the civil action in U.S. District Court.

On Feb. 21, the U.S. Supreme Court will have a chance to settle the matter. Newly confirmed Justice Samuel Alito and his eight colleagues will hear oral arguments on John A. Rapanos v. United States from both sides.

"The Clean Water Act gives the national government monitoring authority over 'navigable' waterways – essentially, rivers and adjacent wetlands. Why should this allow federal officials to nix Mr. Rapanos' development plans on his Michigan land – which is more than 20 miles from the nearest navigable waterway?" said the Pacific Legal Foundation, whose principal attorney, M. Reed Hopper, will argue Rapanos' case.

In response, "Every statute, including the Clean Water Act, has a definition section. 'Navigable' waters are defined as 'the waters of the United States," said Howard Fox, managing attorney of Earthjustice's Washington, D.C., office.

"Under the statute, navigable waters are waters of the United States and the nearest waters are actually on their (the Rapanos') property and adjacent to their property," Fox said. "In each case, it's undisputed that the wetlands are adjacent to streams."

Fox was referring to the fact that another, similar case, Carabell v. United States Army Corps of Engineers, has been consolidated with the Rapanos case.

"When they say 'navigable,' they are referring to a definition that dates back to the 19th century, not the Clean Water Act. But even using that definition, it has long been accepted that the U.S. can protect upstream waters in order to protect downstream waters," Fox said.

Hopper says that assertion is incorrect, saying that, "'Navigable waters' has long been a term of art in the United States. It means that a boat can navigate it."

Fox said even when waters are widely separated, polluting one body of water can lead to problems with another.

"It doesn't matter how long pollutants flow. If they travel 10 feet or 100 miles they are still going to cause problems downstream," Fox said.

"There's also other kinds of connections. For example, in the eastern U.S., the American eel lives in tiny streams most of its life and then goes downstream to spawn in the ocean. It's a commercial fish and supports a million-dollar fishery in the Atlantic Ocean and the Chesapeake Bay," the attorney said.

"They live in streams small enough to step across most of their lives. But if the goal is to protect the Chesapeake Bay – a water everyone would agree is navigable – you have to protect those small streams," Fox said.

Hopper responded: "There was no evidence he (Rapanos) was going to affect a navigable water. There's no evidence he would affect any water. The whole purpose of filling a wetland is so you are not discharging. You don't want sand and gravel to pollute. You're trying to cut off the hydrological connection."

The two attorneys also disagreed over the fundamental issue of the case. Fox said the key issue was the importance of landowners such as Rapanos, or larger entities such as oil companies, getting permits to take actions that might pollute bodies of water.

"In our view, his (Rapanos') arguments are irrelevant to this because whether or not his wetlands had an effect on the stream, he needed to get a permit because government agencies have seen that in most cases there is a connection (between bodies of water)," Fox said.

"It's simpler to prove whether the wetland is adjacent to the stream or not, and then if he applies for a permit you can decide whether the impacts of his wetland on the stream are significant enough that he should or should not get a permit," Fox said.

Hopper disagreed.

"It's already a given that he didn't get a permit and if he wins, theoretically, he won't have to get a permit," said Hopper. "The case is more broad than his specific point. It really isn't about Mr. Rapanos.

"The question is whether or not Mr. Rapanos or the government acted illegally. Did the government exceed its authority in trying to regulate Mr. Rapanos' property?" said Hopper.

According to the Pacific Legal Foundation, Rapanos has been "threatened, tormented and tyrannized by federal officials for nearly two decades," while Ohio environmental activists told the Toledo Blade, "We have no way to win if we lose this case." Regardless of who's right, the case could shape up to be one of the most important land-use lawsuits in recent history.